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Contract - Xylem Flowtronex PSI - 1/28/2016The Engineer is: Christopher Perkins PE City ofround Rock 2008 Enterprise Dr: ` .:: Roiind.Rock,'. TX :78664 For and in consideration :'of . the :.ritiitual :terns; :conditions and covenants of this Agreement and all accompanying documents betweell::— ex a'—'Contractor, the receipt and sufficiency of which are hereby acknowledged, Owner and Coritractoi agree as follows` ARTICLE I THE CONTRACT DOCUMENTS The Contract Documents coiisist of this Agreement, Conditions of the Contract (General, Supplementary and other. Conditions), Drawings,: Specifications; Addenda issued prior to execution .of this Agreement, other documents listed in this Agreement afid°Modifications issued after execution of this Agreement; these form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated .agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either'written or oral. An enumeration of the Contract Documents, other than Modifications, appears in Article 7. ARTICLE 2 THE WORK OF THIS CONTRACT Contractor sball fully execute the Work described in the Contract Documents, except to the :extent specifically indicated in the Contract Documents to be the responsibility of others. 00500 8-2012 00196575 ARTICLE 3 DATE OF COMMENCEMENT; DATE OF SUBSTANTIAL COMPLETION; DATE OF FINAL COMPLETION 3.1, The date of commencement of the Work shall be the date of this Agreement unless a different date is stated below or provision is made for the date to be fixed in a Notice to Proceed issued by Owner. 3.2 The Contract Time shall be measured from the date delineated in the Notice toProceed. 3.3 Contractor shall commence Wokkwiihin Ten to calendar days from the date delineated in the Notice to Proceed. 3.4 Contractor shall achieve SubstI i� etioD of the items of Work listed on Attachment A to this Agreement no later than One hundred twenty ::,.:.,.--:. (_120 1 calendar days from issuance by Owner of Notice to Proceed, and Contractor :shall :achieve :Substantial Completion of the entire Work no later than One hundred twenty(120­.;.J'6 . ale . ridk days ays from issuance by Owner of Notice to Proceed, subject to ii" h, adjustments of this Contract Time as`pfovid&d ft'6.PontfactDocuments. 3.5 If Contractor fails to acbieve''.Sii-b§tb[fitW CbM01666n of the Work (or any portion thereof) on or before the date(s) specified for Substantial C6p'letio . n-: sin .. .the :Agreement, Contractor shall pay to Owner, as liquidated damages, the sum of 1% of pLoj'6*6't'V'All'�e7ocr.wee]E:fti6iiiiitim of 5% of contract value .1—ar day that Substantial Completion is delayed after the LMM date(s) specified for Substantial .:c6inpletion: ;.It..is hereby:4greed that the liquidated damages to which Owner is entitled hereunder area reasonable orer asi:of just compensation for the harm that would be caused by Contractor's the W6ik omp e on bf� failure to achieve Substaritie&C' I. -ti (&-Anyportioii thereof) on or before the date(s) specified for � Substantial Completion in the Agreement. is agreed that the harm that would be caused by such failure, which includes loss'of expected use of:the Project areas, provision of alternative storage facilities and rescheduling of moving and occupancy ,-dates, rs one that is me :: le -.or,-yefy difficult of accurate estimation. It is hereby agreed that tia is not achieved on or before thirty (30) days after the if Substain Comp- e ion ent, the Owner shall have the option to either collect dat6(s)'..s066fied...for Substantial o:n%. A e greerfi liquidated clatriages as se ortl.hereihbr. t rely on its remedies under the Contract Documents and at law acid in .equity, iiacluduag 6 ery Withoutil ** katro Z 'e'::..rec .of Ulu actual damages. The date(s) specified for Substantial .. ...... porton ..... omp e ion 6f*6&,WA.(or thereof)�.th&-A c adjustment as provided in the greement shall be subject to adjust Limitation of LIa'bII1'ty'..*EXCEPT AS THERWISE,PkOVID D BYLAWel NO EVENT SHALL SELLER'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT' PAID BYibYtkUNDER THIS AdREt .. ......... Contractor shall achieve 0 Co#�Pf6 .. ...... o t &.'ehtird Work no later than One hundred fifty 150 calendar days from s ia..n:I.c.,:e.,. �y 0 ner fV0:i'icc40:Proceed. ARTICLE 4 'CONTRACT 'SUM -Owner shall pay Contraddi the Contract Sum arf current funds for Contractor's performance of the Contract. The Contract Sum shall be - eight hundred ninety dollars and sixty-seven cents Vsubject t6iadditions and deductions as provided in the Contract Documents. 4.2 The Contract Sum is based upon the following iiiiernatds which are described in the Contract Documents and are hereby accepted by Owner: NIA ARTICLE 5 PAYMENTS 5.1 PROGRESS PAYMENTS 5.1.1 Based upon Applications for Payment submitted to Engineer and Owner by Contractor,and Certificates for Payment issued by Engineer and not disputed by Owner and/or Owner's lender, Owner shall make progress payments on account of the Contract Sum to Contractor as provided below,in Article 14 of the City of Round Rock General Conditions,and elsewhere in the Contract Documents. Progress payments:30%at time of PO;30%upon submittal approval;30%at shipment; 10%:after system start up, not to exceed 120 days. 51.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month. 5.13 Provided that an Application for Payment is received by Engineer and Ow'ner,.and l nguieer issues a Certificate of Payment not later than the tenth(10th)day of a month, Owner shall make paptnent to'Contractor not later than the tenth(10th)day of the next month.If an Application for Payment is received by Eng nee't and Owner after the application date fixed above,payment shall be made by Owner not later than one month after the Engineer issues a Certificate for Payment. 5.1.4 Each Application for Payment shall be based on the most recent schedule::of;values submitted by Contractor in accordance with the Contract Documents. The schedule of values shall allocate:tlie entire Contract Sum among the various portions of the Work. The schedule of values shall be prepared in`such:f6tra and supported by such data to substantiate its accuracy as Engineer and Owner may require. This schediile ufikgs objected to by Engineer or Owner,shall be used as a basis for reviewing Contractor's Applicatiohi forPayt 0)Jt 5.1.5 Applications for Payment shall warrant the percentage of completion of each portion of die''W&k as of the end of the period covered by the Application for Payment 5.1.6 Subject to other provisions of the Contract Documents, the amount of each progress:payment shall be computed as provided in Article 14 of the City of Round Rock General Conditions_ 5.1.7 Except with.Owner's prior written approval, Contractor shall not make'.advanice payineiits.to suppliers for materials or equipment which have not been delivered and stored at the site. 5.2 FINAL PAYMENT 5.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be inade:by Owner to Contractor when: .1 Contractor has fully performed the Contract except for Cantraetor's responsibility to correct Work,and to satisfy other requirements,if any,which extend bei y'dnd filial payivent,and .2 a final Certificate for Payment has been issued by Engineer.-:..'..... W. 5.2.2 Owner's final payment to Contractor shall be made no later than birty:(30) days::after.:. issuance of Engineer's final Certificate for Payment. In no event shall final payment be regmred to be made prior to thirty(30) days after all Work on the Contract has been fully performed. Defects in 66'bik'discovered prior to final payment shall be treated as non-conforming Work and shall be corrected by Contra:66i:.prior:to.fuial:payment;':and:shall not be treated as warranty items. ARTICLE 6 TERMINATION OR SUSPENSION 6.1 The Contract may be terminated by Owner or Contractor as provided':in Aiticle:l5 of the City.-df Rouriid Rock General Conditions. Page 3 of 5 6.2 The Work may be suspended by Owner as provided in Article 15 of the City of Round Rock General Conditions. ARTICLE 7 ENUMERATION OF CONTRACT DOCUMENTS 7.1 The Contract Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows: 7.1.1 The Agreement is this executed version of the City of Round Rock, Texas Standard Form of Agreement between Owner and Contractor, as modified. 7.1.2 The General Conditions are the "City of Round Rock Contract Forms 00700," General Conditions, as modified. 7.1.3 The Supplementary, Special, and other Conditions of the Contract are those contained in the Project Manual dated September2015 7.1.4 The Specifications are those contained in the Project Manual dated September 2015 7.1.5 The Drawings, if any, are those contained in the ProjectManual dated September 2015 7.1.6 The Insurance& Construction Bond Forms -of the Contract are those contained in the Project Manualdated September 2015 7.1.7 The Notice to Bidders, instructions to BiAdefs',:tid Form, and Addenda, if any, are those contained in the Project Manual dated September 2015 7.1.8 If this Agreement covers construction''in'461v'ing feder I al funds, thereby requiring inclusion of mandated contract clauses, such federally required clauses Are those contained in the "City of Round Rock Contract Forms 03000," Federally Required Contract Clauses, as modified. - 1.0 Other documents, if any, forming part of th6 C6iitract Documents are as follows: 01000 Attachment A 'A ATICLE 8 MISCELLANEOUS PA6VTSIbiNg 8.1 Where reference is made in this Agre'emodt t6a' provision of any document, the reference refers to that .'.::provision as amended or supplemented by other provisions of the Contract Documents, 8.2 Owner's representative is: Jeff Bell/Project Manager City of Round Rock 2008 Enterprise Drive Round Rock Texas 78664 8.3 Contractor's representative is: Simon Keggen Controller/Interim Director of Manufacturing Flowtronex PSI LLC AWS Xylem Inc 8.4 Neither Owner's nor Contractor's representative shall be changed without tell (10) days' written notice to the other party. 8.5 Waiver of any breach of this Agreement shall not constitute waiver of any subsequent breach. Page 4 of 5 8.6 Owner agrees to pay Contractor from available funds for satistactory performance of this Agreement in accordance with the bid or proposal submitted therefor, subject to proper additions and deductions, all as provided in the General Conditions, Supplemental Conditions, and Special Conditions of this Agreement, and Owner agrees to make payments on account thereof as provided therein. Lack of funds shall render this Agreement null and void to the extent funds are not available. This Agreement is a commitment of City of Round Rock's current revenues only. 8.7 Although this Agreement is drawn by Owner, both parties hereto expressly agree and assert that, in the event of any dispute over its meaning or application, this Agreement shall be interpreted reasonably and fairly, and neither more strongly for nor against either party. 8.8 This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 8.9 Both parties hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement: or a breach thereof shall be decided by an arbitration proceeding, .including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 8.10 The parties, by execution of this Agreement, bind themselves, their heirs, successors, assigns, and legal representatives for the full and faithful performance of the terms and provisions hereof. This Agreement is entered into as of the day and year first written above and is executed in at least three (3) original copies, of which one is to be delivered to Contractor, one to Engineer for use in the administration of the Contract, and the remainder to Owner. Bond No. K09320118 PERFORMANCE BOND THE STATE OF TEXAS KNOW ALL BY THESE PRESENTS: COUNTY OF WILLIAMSON That Xylem Flowtronex PSI, LLC of the City of Dallas , County of Dallas , and State of Texas , as Principal, and esteester Fire Insurance authorized under the law of the State of Texas to act as surety on bonds for principals, are held and firmly bound unto THE CITY OF ROUND ROCK, TEXAS, (Owner), in the penal sum of Eighty Three Thousand Eight Hundred Ninety And 00/100 ------------------------------------------ Dollars ($ 83,890.00 ) for the payment whereof, well and truly to be made the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, by these presents: WHEREAS, the Principal has entered into a certain written Agreement with the Owner dated the day of oLiVI{J�� , 20 16to which the Agreement is hereby referred to and made a part hereof as fully and t� o the same extent as if copied at length herein consisting of. Forest Creek Reuse Irrigation Pump Station Replacement (Name of the Project) NOW, THEREFORE, THE CONDITIONS OF THIS OBLIGATION IS SUCH, that if the said Principal shall faithfully perform said Agreement and shall, in all respects, duly and faithfully Aobserve and perform all and singular the covenants, conditions and agreements in and by said Agreement, agreed and covenanted by the Principal to be observed and performed, including but not limited to, the repair of any and all defects in said work occasioned by and resulting from defects in materials furnished by or workmanship of, the Principal in performing the Work covered by said Agreement and occurring within a period of twelve (12) months from the date of Final Completion and all other covenants and conditions, according to the true intent and meaning of said Agreement and the Plans and Specifications hereto annexed, then this obligation shall be void; otherwise to remain in full force and effect; U PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253, Texas Government code, as amended, and all liabilities on this bond shall be determined in accordance with the provisions of said Chapter 2253 to the same extent as if it were copied at length herein. qPage 1 00610 7-2009 Performance Bond 00090656 PERFORMANCE BOND (continued) Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the term of the Agreement, or to the Work performed thereunder, or the Plans, Specifications, or drawings accompanying the same, shall in anywise affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement, or to the work to be performed thereunder. IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this 17th day of November 32015 . Xylem Flowtronex PSI, LLC Principal S1mb f' Printed Name By: —� Title:p�(L, D OPEY�ArCtp�o.�5 Address: 10661 Newkirk Street Dallas, TX 75220 YRes' ent Agent of Surety: ignature Robbie Morales Printed Name 2711 N. Haskell Avenue Street Address Dallas, TX 75204 City, State & Zip Code Westchester Fire Insurance Company Surety Cynthia Farrell Printed Name By: , Title: orney-In-Fact Address: 436 Walnut Street Philadelphia, PA 19106 Page 2 00610 7-2009 Performance Bond 00090656 Bond No. K09320118 PAYMENT BOND THE STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WILLIAMSON That Xylem Flowtronex PSI, LLC , of the City of Dallas Countyof Dallas and State of Texas as Principal and estchester ire Insurance Com aw authorized under the laws of the State of Texas to act as Surety on Bonds for Principals, are held and firmly bound unto THE CITY OF ROUND ROCK, (OWNER), and all subcontractors, workers, laborers, mechanics and suppliers as their interest may appear, all of whom shall have the right to sue upon this bond, in the penal sum of Eighty Three Thousand Eight Hundred Ninety And 00/100 -------------------------------- Dollars ($ 83,890.00 ) for the payment whereof, well and truly be made the said Principal and Surety bind themselves and their heirs, administrators, executors, successors, and assigns, jointly and severally, by these presents: WHEREAS, t e Prrincipal has entered into a certain written Agreement with the Owner, dated the day of 20& to which Agreement is hereby referred to and made a part hereof as fully ant to the same extent as if copied at length herein consisting of: Forest Creek Reuse Irrigation Pump Station Replacement (Name of the Project) NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall well and truly pay all subcontractors, workers, laborers, mechanics, and suppliers, all monies to them owing by said Principals for subcontracts, work, labor, equipment, supplies and materials done and furnished for the construction of the improvements of said Agreement, then this obligation shall be and become null and void; otherwise to remain in full force and effect. PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253, Texas Government code, as amended, and all liabilities on this bond shall be determined in accordance with the provisions of said Chapter 2253 to the same extent as if it were copied at length herein. Page 1 00620 7-2009 Payment Bond 00090656 PAYMENT BOND (continued) Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement, or to the Work performed thereunder, or the plans, specifications or drawings accompanying the same shall in anywise affect it's obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this Instrument L� this 17th day of November , 2015 . Xylem Flowtronex PSI, LLC Principal Stmop Printed Name By: s Title:V1IL. OP iopeen '110Y.7S Address: 1066.1 Newkirk Street Dallas, TX 75220 Resident Agent of Surety: /'/ , - /lnA Signature Robbie Morales Printed Name 2711 N. Haskell Avenue Street Address Dallas, TX 75204 Westchester Fire Insurance Company Surety Cynthia Farrell Printed ame By: Title: At rney-In-Fact Address: 436 Walnut Street Philadelphia, PA 15106 Page 2 00620 7-2009 Payment Bond 00090656 ACC7RC,�� CERTIFICATE OF LIABILITY INSURANCE �,�- DATEIMMIDC),YYYY: 1111812015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such andorsement(s). PRODUCER Aon Risk Services Northeast, Inc. New York NY Office CONTACT NAME' jN1. 1, Ell)! (866) 283-712: W. No. (800) 363-0105 W. 199 water Street New York NY 10038-3551 USA E-MAIL ADDRESS: INSURERIS) AFFORDING COVERAGE NAIC N 11 - ionsDAMAGET INSURED xylem, Inc. Flowtronex Psi Inc INSURER A: ACE American Insurance Company 22667 INSURER B: ACE Fire Underwriters Insurance Co. 20702 INSURER C: 10661 Newkirk Street Dallas Tx 75220-2303 USA INSURER D: f INSURER E: i I INSURER F: v THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CON11ITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. Limits shown are as requested INSR LTRTYPE OF INSURANCE ADD SURRI , WV POLICY NUMBER YYYYOLICYEFF MMIODIYYYY LIMITS X COMMERCIAL GENERAL LIABILITY AIMS-MADE(OCCUR L___. XSLG SIR applies per policy terms & condi 11 - ionsDAMAGET EACH OCCURRENCE l $1,000,000 REN $1,000,000 PREMISES (Ea occurrence MED EXP (Ary one person) EXCi tided i I PERSONAL& ADV INJURY $1,000,000 GEN'LAGGREGATE LIMIT APPLIES PER- X POLICY E]PRO- JECT 7 `OC I GENERAL AGGREGATE $2,000,000 PRODI.CTS-COMPIOPAGG 52,000,000 OTHER' SIR 51,000,000 A AUTOMOBILE LIABILITY ISA H0886066A 10/31/2015 10/3:/2016 COMB NED S'NGLE LIMIT ar. ,Idertl $1.000.000 _ BODILY INJURY ( Per person) X ANY Au 10 ALL OWNED SCHEDULED AUTOS AUTOS HIREDAUTOSNON-OWNED AUTOS BODILY INJURY (Per accident) PROPERTY DAMAGE Pe, accident) UMBRELLALIAS OCCUR EACH OCCURRENCE EXCESS LIAR CLAIMS -MADE I AGGREGATE DED RE`ENT'ON 1 A e WORKERS COMPENSATION AND EMPLOYERS'LIABILITY YIN ANY PROPRIETOR! PARTNER 1 EXECUTIVE o1 f ClLWMEMBER EXCLUDED? 7 NIA wLRc48592387 WC All Other States SCFC48592399 —10731/2015 10/31/2015 101311201 10/31/2016 X, PER STATUTE El E.L. EACH ACCIDENT S1,000,000 _ E.L DISEASE -EA EMPLOYEE S 1, 000 , 000 (Mandatory In NH) If yes, desc-ibe under DESCRIPTION OF OPERATIONS below WC wI Only E.L. DISEASE -POLICY L MIT $1, 000 , 000 7 - DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached it more space is required) Project: Forest Creek Reuse irrigation Pump Stati. On Certificate Holder is included as Additional Insured in accordance with the policy provisions of the General & Auto Liability policy. A waiver of Subrogation is granted in favor of certificate Holder in accordance with the policy provisions of the workers Compensation policy. i 1 d In M m b O 2 m UV t: tL L) UhKTiFICATE HOLDER CANCELLATION C-3 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL RE DELIVERED IN ACCORDANCE WITI4 THE POLICY PROVISIONS. City Manager AUTHORIZED REPRESENTATNE City of Round Rock 221 East Main Street Round Rock 7X 78664 USA c /jp�fradG a�T r ©192014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014101) The ACORD name and logo are registered marks of ACORD